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When can you evict a tenant for a family member?

It's true that a landlord can evict a tenant, if a family member is moving
in. But that had better be the case.

(Shutterstock)

By Mark Weisleder

Fri., April 29, 2011

When can you evict a tenant for a family member?

John from Toronto wondered if he could get rid of a problem tenant by letting his son to live in the apartment and how long his son would have to live there before he could rent it to someone else.

The question shows the confusion, as well as the lack of trust, on the part of both landlords and tenants when it comes ending a lease because you want the apartment or house for a family member, or when a buyer of a home requires vacant possession after closing. There are several issues.

A landlord can end a residential lease at the end of its term by giving 60 days’ notice if he can prove that he needs the place for a family member. The family member must either be the landlord, their spouse, child, parent or caregiver to any of the above, provided the person being cared for also lives in the building. Family members includes same sex couples and married as well as common law relationships.

End of term means the end of the lease. If your tenant has a lease with 10 months left, you cannot evict them before the end of the 10 months. If the tenant is on a monthly lease, with rent payable on the first of the month, and today is April 15, then the earliest you can terminate the tenancy is June 30. If the tenant does not leave on June 30, you can apply to the Landlord and Tenant Board for an eviction order.

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Many tenants are suspicious when landlords give this notice. They think it is an excuse to evict them so that they can double the rent for a new tenant, without having to get the rent increase approved by the Board. Others are suspicious the landlord may be just using it as an excuse when they have been having problems with the tenant.

The case depends on whether the judge will believe that the landlord really needs the unit for a family member. There have been other cases that suggest you cannot evict a tenant citing the need to use it for a family member, if you want to use the space for extra storage or an office. You must be able to demonstrate that it is extra living space.

If the property is owned by a corporation, then although a corporation is not a real person, with no family, the cases have held that if the landlord can demonstrate that the corporation is owned and controlled by a single person, then that single person can apply to terminate the tenancy using this reason.

If a buyer wants vacant possession of the property on closing, for themselves or for a family member, then there is a restriction in the Act that the building being purchased must not have more than three rental units. A condominium is considered a single family dwelling. Therefore if you are buying a fourplex, then you cannot evict any of the tenants on closing using this reason. However, after closing, you can use the family reason noted above to evict one or more of the tenants as long as you can prove that you need one or more of the rental units for your family.

By understanding when and how you can evict a tenant for a family member, hopefully landlords and tenants can end their lease agreements in a more amicable manner.

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